What really happened is the network suspended him primarily for taunting and thereby implicitly criticizing his superiors, but more on that in a bit.

As for whether Simmons should be allowed to call Goodell a liar, Lipsyte insists that, until there’s “a smoking gun that proves when the NFL viewed the Ray Rice video” (emphasis added), Simmons is off base. Until and unless such a smoking gun emerges, Roger Goodell is not a “certified liar”, Lipsyte argues.

Contrast this with what Simmons actually said on his podcast: “Goodell, if he [says he] didn’t know what was on that tape, he’s a liar.” (Emphasis added.)

There is a major difference between seeing a video and knowing what is on the video, and conflating the two is exceptionally sloppy for an award-winning journalist.

To help illustrate: Thanks to several young children, I know a great deal about “Frozen”, despite not having seen the film.

If I watch Frozen this weekend and say, “Wow, I had no idea it would have so much singing!”, I would be a liar. If I were to claim that I had desperately wanted to see the film earlier, but before that point, I had had no way to see the film — you know, as opposed to deliberately having avoided some pretty clear opportunities — I would be a liar. Just like Roger Goodell is a liar. A lying liar who lies.

Goodell fibbing about whether he knew what was on the tape is only part of what Van Natta and Van Valkenburg identify as “a pattern of misinformation and misdirection employed by the Ravens and the NFL since that February night.”

Of course, to accuse someone of a “pattern of misdirection and misinformation” is to call them a liar, albeit using five-dollar words.

Follow those Mortensen and King links (reproduced from Simmons’ column). For those of you who couldn’t stand to watch the video but wanted to know what was on it, Mortensen’s account is startlingly accurate. Again, this is from July and based on his insider access to league sources.

What Peter King wrote should, in hindsight, be viewed as an even bigger deal than what Simmons implies:

There is one other thing I did not write or refer to, and that is the other videotape the NFL and some Ravens officials have seen, from the security camera inside the elevator at the time of the physical altercation between Rice and his fiancée. I have heard reports of what is on the video… (emphasis added)

Earlier this summer a source I trusted told me he assumed the NFL had seen the damaging video… The source said league officials had to have seen it. This source has been impeccable, and I believed the information. So I wrote that the league had seen the tape. I should have called the NFL for a comment, a lapse in reporting on my part. The league says it has not seen the tape, and I cannot refute that with certainty. No one from the league has ever knocked down my report to me, and so I was surprised to see the claim today that league officials have not seen the tape.

Again, he wrote in July that the league and team had seen the inside-the-elevator tape. Then, over a month elapsed without anybody pulling him aside and correcting him.

To understand how significant this is, you have to know Peter King’s place in the NFL universe: one of the least critical, best-connected reporters whose rolodex of sources is a close approximation of “everyone”. King regularly takes calls from, and casually calls, league sources all year. He’s widely known as a friendly mouthpiece. (This is mostly true of Mortensen as well.)

If Peter King says something that the league doesn’t think is accurate, or even something they would like to add to or clarify, to any degree, King is essentially guaranteed to receive — and take, and respond to — a call from an insider.

The last sentence from King’s Sep. 8 correction is as close to damnation as we are likely to see from him on this point. It rightfully implies that (especially coming from him), “No one from the league has ever knocked down my report to me” pretty much speaks for itself.

As if on cue for their entry as the protagonist in a Greek tragedy, management has enacted a suspension that proves Simmons’ implicit point splendidly. They’ve provided pretty good evidence that certain people (management) cannot be criticized, and that others (NFL leadership) should generally be criticized only in the most high-brow language — five dollar words only, please, and only when the evidence is incredibly overwhelming.

The suspension is feeding already-extant skepticism about the network’s ability to consistently (as opposed to intermittently) allow their talent to reach their own conclusions and share these publicly.

The message to Simmons was, undoubtedly, “You can’t criticize us publicly like this.” That is chilling enough. A substantial portion of the population, though, hears (at least in part), “You can’t criticize our content partner like this.” Even if that’s not the real motivation, the optics are (to quote Charles Barkley) just turrible.

This is where an Ombudsman is supposed to provide an outsider’s corrective — a reassurance to the reader that well-founded outside criticism will always have at least one ally in the building.

The more defensible (and, in reality, motivating) reason Simmons was suspended was for dissing management. While Lipsyte alludes to this (implying that the suspension is also due to management’s “thin skin”), he opens and closes by insisting that this story is really about whether Simmons had the goods for his claim — and he concludes that Simmons didn’t have the goods.

That takes real chutzpah from somebody who substantially misrepresents the claim in question.

Even as the hordes crash at the gates in Bristol, the Ombudsman — the Ombudsman — writes to reassure us that management basically got this one right, without even deigning to rebut claims that this sure looks like a result of the network’s conflict of interest. “Obviously I disagree” with such critics is all we get. When the very integrity of the network is being questioned, blowing off those questions is tone deaf indeed.

Goodell is a liar. Simmons was correct in calling him a liar. And ESPN was some combination of corrupt and petulant to discipline him for it.

If even the Ombudsman is this tone deaf, ESPN still has a lot of tuning up to do.

I think this is a pretty interesting disagreement. Fraade feels that curators’ personal beliefs are distinct from the editorial strategy/organizational model. This lets him lump Upworthy together with copycat sites like viralnova and policymic (where, he notes, he used to work). I think that the identity and beliefs of the curators — who you hire, essentially — is actually quite central to the model.

Swap out all of Upworthy’s curators, and you no longer have Upworthy. Selecting the right people as curators is a crucial first step.

Digital curation sites like Upworthy move content through a three-stage process. They gather inputs (videos, infographics, or other distinct pieces of online content) at stage 1. Once they select something worthwhile, they move to stage 2, creating a frame. This stage includes brainstorming 25 potential headlines for each piece of content (a process that Koechley learned while working at The Onion), then pick the best 3 or 4 headlines. They then run those headlines through a proprietary analytics engine, nicknamed the “magical unicorn box.” They discuss technical details of this analytics process on their R&D blog. Then in stage 3, they promote that content through Facebook, e-mail, Twitter, and the website.

Stage 3 is highly visible. Stage 2 is harder to see, but there’s been plenty of journalism on the subject. Stage 1, is mostly invisible, and has been left entirely unexplored. Copycat sites like Policymic and Viralnova have mimicked stage 3 and approximated stage 2, but they haven’t attempted to adopt the same stage 1 as Upworthy (as far as I can tell, at least). Independent Journal Review is trying to occupy the “conservative upworthy” landscape, but it sure looks like they’re just latching on to stage 3, not even bothering with stage 2.

Stage 1 is about finding the right content. It is a subjective process, based on shared taste and values. Or, phrased differently, stage 1 is entirely about ideology. What topics and issues deserve a better megaphone? What narratives and conflicts best illuminate those issues?

And that brings me back to Fraade’s critique. He takes issue with Nitsuh Abebe’s New York Magazine feature article, “Are You Cynical EnoughTo Hate Upworthy?” (which you should really read, btw.) When Abebe asked Eli Pariser and Peter Koechley whether they were cynics, Koechley replied “have you met any cynics here?” Fraade offers the rejoinder,

This is a skillful evasion of the question. No one particularly cares whether Pariser and Koechley are cynics. What’s cynical is the strategy of finding “meaningful” content about social or political issues, and adding an emotionally manipulative headline, monetizing the results, all the while claiming earnestly that your goal is to make the world a better place. So it is that two liberals may end up playing an outsize role in shrinking the horizons of liberalism.

I don’t think Koechley was evading the question, though. I think he was directly answering it. Upworthy’s success rests on hiring the right people. Many of those people come out of progressive politics, and that isn’t an accident.

You could construct a cynical version of Upworthy. Just hire cynical people. But the result would be a distinctly different organization, with different content, different brand concerns, different impacts and a completely different funding model.

Or, put more simply, Fraade’s criticism of the Upworthy model only holds up if we avert our attention from a big chunk of the model itself.

Every month or two, it seems like the same cranky opinion piece gets written about Upworthy. The latest, “Upworthy’s unworthy politics” comes from Jordan Fraade at Al Jazeera America, bears all the hallmarks of the genre: There’s (1) the glib references to “you won’t believe what happens next” headlines, (2) the equating of A/B headline testing and “clickbait,” (3) the pretend-OUTRAGE that the site is neither a non-profit advocacy organization nor a venue for traditional journalism, and (most importantly) (4) the lack of any actual understanding of what Upworthy is trying to achieve.

Here’s the worst passage from Fraade’s think-piece:

To the extent that Upworthy has stated goals, they basically run along the lines of “We want to help you share things that are meaningful,” and “We want viral content to be a tool for social good.” (Upworthy also has actual goals, which involve making money for itself and its investors.) The site leans left; its 30-something founders both worked at MoveOn.org during the 2008 presidential campaign. But the ideology of the site and others like it isn’t a recitation of the Democratic Party platform. It’s not really a cohesive liberal worldview of any sort. Upworthy liberalism is liberal politics stripped of any awareness of systemic barriers or perverted incentive structures. It’s what happens when liberalism is treated as merely a set of lifestyle preferences.

There are two head-smackers in this paragraph.

First, describing Upworthy’s founders (Eli Pariser and Peter Koechley) as having “worked at MoveOn during the 2008 presidential campaign” is a bit like saying San Antonio Spurs coach Greg Popovich “worked for the Spurs during the 2012 NBA lockout.” Pariser was the Executive Director of MoveOn from 2004 through 2008, and was central to turning the organization into a progressive juggernaut. He’s also the author of The Filter Bubble, an excellent book about the danger of online echo chambers (close readers might recall my shoutingloudly review of the book, incidentally).

Upworthy was created as a partial solution to the Filter Bubble problem. This is pretty important contextual information for anyone who wants to actually understand the site.

Second, Fraade asserts that “Upworthy liberalism is liberal politics stripped of any awareness of systemic barriers or perverted incentive structures.”

Bullshit.

I’ve met a lot of Upworthy staff. Every one of them is deeply aware of systemic barriers and perverted incentive structures. I’d go so far as to say that this sort of awareness is one of the things they look for in the hiring process. And I’ve watched a lot of Upworthy videos. Nearly every one of them deals, in one way or another, with systemic barriers to social change.

They just don’t deal with it in Fraade’s preferred format.

Though Fraade never gets around to describing a solution or preferred model, his complaints all center around the supposed lack of nuance in Upworthy content. Upworthy does not promote 6,000 word essays on mass incarceration. It doesn’t produce two-hour documentaries on race in America. Its vision and values aren’t neatly arrayed in a platform or manifesto for our perusal. And, since it has become massively successful, it is now a convenient vessel for us to place blame for the failings of the broader media system.

Here are four basic things you should actually understand about Upworthy:

1. Upworthy is curation, not journalism. Upworthy isn’t meant to replace The New Republic, MSNBC or The New York Times. They don’t hire journalists or film crews. It plays a strict curatorial role. They find quality content, tinker with the headlines and visual frames, and try to help videos about the health care system get as much traffic as videos about kittens.** If you’re pinning your hopes for the future of journalism on Upworthy, you’re going to be disappointed. They aren’t journalists.

2. Upworthy reaches beyond the echo chamber. I wrote about this last year, but it bears repeating. Outside of elections, the politically-attentive segment of the American public is vanishingly small. The biggest barrier for activists trying to engage in a public conversation about inequality, or fracking, or racism isn’t that the other side is reframing the debate; it’s that almost no one is paying attention.

Upworthy reaches between 40 and 80 million individuals per month. That’s between 10 and 30 times larger than any program on MSNBC. What Pariser and Koechley have done seemed downright impossible. They have found a way to reach large segments of the American public with substantive progressive content. It may not always be the specific content you or I would choose, but I would argue that it is the most dramatic change in the political information landscape of the past 5 years.

“Clickbait” generally refers to headlines that draw a lot of clicks, often in a misleading fashion. That isn’t an accurate representation of Upworthy’s model, though. Upworthy measures both shares and clicks. If shares and clicks are both low, the content isn’t particularly exciting. If clicks are high but shares are low, then you’ve probably caught people in a “clickbait” trap. When shares are high, but clicks are low, it indicates that the content has the potential to engage a large audience, if and only if it is framed correctly.

And that’s where Upworthy’s vaunted A/B testing regime comes into play: they fiddle with headlines for highly-shareable content, helping it to get clicks. The Upworthy model doesn’t work for clickbait junk.

4. Upworthy is a force multiplier. Upworthy is not meant to be political activism. But it is activism-adjacent. One of the biggest evergreen problems for social movement organizations lies in reaching beyond the choir and gaining the attention of the broader public. Upworthy doesn’t solve this problem on its own: the most popular videos on the site don’t end with a stirring call-to-action or even with a “donate” link. But when advocacy groups create polished, high-quality content, Upworthy potentially serves as an engine for mass appeal.

As an example, consider John Oliver’s EPIC net neutrality segment on Last Week Tonight. Oliver is also activism-adjacent. He educates his viewers on Net Neutrality — a major, but-also-boring matter of public importance. He is funny and informative. He ends with a call to all internet commenters to do what they do best: leave angry comments on the FCC’s website. Originally airing on HBO, the segment drew about 1 million viewers. It was then rebroadcast via digital links, embedded in blog posts, facebook walls, and tweets. It quickly galvanized a torrent of FCC input, crashing the government agency’s comment site.

…I guess Jordan Fraade doesn’t see much value, or nuance, in posts like this. I do, though. I think it’s significant that a curation site like Upworthy can help drive public engagement with substantive policy issues.

The site isn’t a replacement for high-quality journalism, or for high-quality activism. But it isn’t supposed to be. It’s filling a vital niche in our patchy public discourse — a niche that no one else has been able to fill.

That ought to be celebrated. Or, at least, it ought to be accurately described before we critique it.

I’m often mildly offended by Brooks’s writing. I think he’s (mostly) a lazy columnist who dresses up culture war outrage with faux social science language. But it’s only a mild offense. There are plenty of bad columnists out there, and the best response is simply not to read them.

But yesterday’s column was a bridge too far. The state of Colorado has just officially legalized pot. David Brooks wants us to know that this is a Very Bad Thing. He tries to convince us of this by telling the story of how he smoked up for awhile in high school, but then got over it and became a Well Rounded Individual. The police never enter into his story. The threat of jail time or expulsion from school never impact his decision-making. He tried pot, got bored of it, and moved on to other things. This ought to be the beginning of a column supporting Colorado’s policy decision — I imagine plenty of Colorado teens will go through the same cycle. But no, because David Brooks is a culture warrior. Here’s the conclusion of the article, in all its offensive glory:

The people who debate these policy changes usually cite the health risks users would face or the tax revenues the state might realize. Many people these days shy away from talk about the moral status of drug use because that would imply that one sort of life you might choose is better than another sort of life.

But, of course, these are the core questions: Laws profoundly mold culture, so what sort of community do we want our laws to nurture? What sort of individuals and behaviors do our governments want to encourage? I’d say that in healthy societies government wants to subtly tip the scale to favor temperate, prudent, self-governing citizenship. In those societies, government subtly encourages the highest pleasures, like enjoying the arts or being in nature, and discourages lesser pleasures, like being stoned.

In legalizing weed, citizens of Colorado are, indeed, enhancing individual freedom. But they are also nurturing a moral ecology in which it is a bit harder to be the sort of person most of us want to be.

Look, David Brooks is not an idiot. He is surely aware that our current drug laws are not only “subtly tip[ping] the scale to favor temperate citizenship,” but also landing thousands upon thousands of people in jail for being kids who try illicit substances. And he is also aware that those laws apply overwhelmingly to people who don’t share his race and class privileges. It is pretty damn hard to “be the sort of person most of us want to be” if you land in prison because you got caught with some weed.

But David Brooks is a culture warrior with column inches to fill. So he ignores his racial privilege and his class privilege and the prisons filled with non-violent drug offenders, and instead phones in a column about “nurturing a moral ecology” where other kids don’t have the same experiences he had when he was young.

No, this column tells us something deeper about David Brooks. At the end of the day, he isn’t just a lazy pundit with a prestigious perch at TheNew York Times. He’s also a downright awful person. He uses his power to fight against society correcting its most obvious mistakes. He doesn’t deserve to be ignored. He deserves to be shamed.

In the majority of media coverage about the shutdown and debt ceiling, the press has bent over backward to imply that there is plenty of blame to go around. This is false equivalency of the highest order, and I’m here to correct the record.

The number one threat to the US and world economy is congressional Republicans and, by implication, the reactionary extremist voters who put them in power. They’re about to blow up the financial system in vengeance because they lost the presidential election — and this largely over a policy first implemented by their own presidential candidate.

And don’t say, “What about the debt?” If they were serious about that, they’d try to keep interest rates low and GDP high. (They’d also take seriously the idea of more revenue…) If we default, though, interest rates will skyrocket and GDP will crater. (That’s not just my opinion, btw; follow the link to see the stark terms used by Mark Zandi of Moody’s Analytics.) Think “rates on my credit card” (instead of the near-zero rates we enjoy now) and “next Great Depression”. That’s a helluva debt trap (expenses way up, income way down) to try to claw our way back out of.

Even the credible threat to default has short term rates rising and people nervous to make long term investments. Would you buy US Treasury bonds right now? Would you open or expand a business right now (or even during the negotiations, assuming a bill passes)? (Zandi estimates the current standoff has already cut $20 billion off GDP.) If I had money to move, it’d be leaving the US economy post haste.

This isn’t “Let’s compromise because everyone has some valuable ideas” time. This is “Either you jerks come to your senses, or you’ll drive our government and economy off a cliff.” And I don’t have a lot of faith in the former.

I really hope Obama is willing to declare unilateral executive power to continue borrowing if it comes to that. The alternative starts to look like an even more extreme, self-inflicted version of the Greek collapse. But with way more guns. What could go wrong?

Two students in my graduate seminar sent me this Jimmy Fallon clip yesterday. It’s pretty funny. But this isn’t a post about Fallon and Timberlake. It’s a post about a brief rant a subjected my class to earlier this semester. It’s about my brewing hashtag-rage.

About a month ago, I was reading Twitter at home and stumbled across a run-of-the-mill baseball post. It was something like “wow, what a #great #catch! Go team! #Nationals.” The writer has turned a simple statement into cluttered word salad. It’s obnoxious, and it leaves me annoyed.

Companies on Twitter do this constantly as well:

@NewDay is, apparently, a program on CNN. If you click on the #NewDay hashtag, you’ll find a mix of reporters and staff involved with the show, along with a bunch of people tweeting about how their alarm clock didn’t go off this morning. Click on the #Thursday hashtag, and you’ll find people talking about Thursday. Click on the #Bono hashtag, and… well, you get the picture.

The extra # symbols pollute the message. It helps convince people that Twitter is stupid. But Twitter isn’t stupid, they’re just using it in a stupid manner.

I can think of exactly four good reasons to use a hashtag:

1. There are a few stable communities that organize an ongoing conversation through hashtags. #TCOT (Top Conservative On Twitter) is the best example. Want to reach the conservative political community? Use #TCOT. Plenty of them will see it.

2. Sometimes there will be a public event/media event that causes an online conversation to erupt. After the Navy Yard shooting last week, people started monitoring social media to get updates. #NavyYard is sensible and appropriate.

(Let me pause for a moment. The difference between these two cases and “#Great #Catch…” is that a community is, in fact, monitoring the hashtag. No one monitors the conversation around “#Great” or “#Thursday!” The function of a hashtag is to alert people who are having a conversation around the same topic. Attending the American Political Science Association conference? Go ahead and use #APSA2013 so other attendees can read you’re witticism. But don’t write “#political,” “#science” unless you desperately want everyone to judge you.)

3. Providing context. During the Emmys on Sunday night, I doubt many people were monitoring the #Emmys conversation stream. It would be too big and too full of repetitive comments from people who you don’t know or care about. But if you’re watching the Emmys and want to make a Jon-Stewart-was-robbed comment, adding #Emmys to the end can provide context for readers who are engrossed in Sunday Night Football, forget that the Emmys is on that night, and otherwise will be left wondering what you’re talking about.

4. Humor. Hashtags can be great for jokes. They can act like Stephen Colbert’s “the Word” segment, calling out the subtext or irony of the statement you just made. They can also promote hashtag games.

Notice, these third and fourth cases apply hashtags to offer context within-message , rather than to bridge your message to a broader community. That’s fine. But #Thursday and #FiveThings are just needless jumble. They’re bad writing. And you see it everywhere. And it deserves to be mocked.

Thus, #hashtagrage. When people (companies especially) use social media obnoxiously, I think they should be insulted for it.

At least in my circles, it’s pretty much taken for granted that Robin Thicke’s megahit “Blurred Lines” is shamelessly offensive.

I can’t imagine telling a woman “You the hottest bitch in this place!” I definitely can’t get behind the song’s no-means-maybe-means-yes message. The video is practically a parody of itself. (Here’s an actual parody that reverses the genders; much better.)

So, as forward-thinking people looking at the ongoing copyright dispute between the artists, it should be a slam dunk all-around agreement that, considering the striking similarity between “Blurred Lines” and the classic Gaye song “Got to Give It Up”, we should all hope that Gaye’s team sues Thicke for all he’s worth — or, at least, much/most/all of the truckloads of cash “Blurred Lines” has hauled in. (And let’s throw in Pharrell Williams, too, for producing and co-writing this bit of musical larceny.) Right?

Not so fast.

Before beginning a (brief) legal analysis, let’s set aside the very valid critiques of the gender politics in Thicke’s song and video (to say nothing of the shameful gender politics and troubling racial messaging of the Thicke/Miley Cyrus VMA performance).

Under current law, “Blurred Lines” is probably not infringing, assuming no samples were used — that is, assuming that all the sounds were independently re-recorded for the new song, and Thicke and Farrell claim not to have sampled Gaye’s song.

The rhythmic similarities are substantial, but according to literally every expert on musical similarity in copyright that I’ve ever read/heard/spoken with, that counts for very little — again, assuming the sounds were independently re-recorded. Here’s a bit from the Music Copyright Infringement Resource, a joint project of the law schools at Columbia and USC, explaining how melody is the key to establishing substantial similarity between two musical compositions:

A work’s melody is what we consider the tune of a piece. Indeed it is most usually the melody of a piece that we hum when trying to recall it; a piece’s melody is typically its most distinctive and memorable feature. As such, melody is the musical element that most easily lends itself to claims of originality. …

Melody is overwhelmingly the single most important feature of a musical work in evaluating the merits of copyright infringement claims. The entire corpus of judicial opinions in the area of music copyright infringement dwells on melody as the single most idiosyncratic element of the works in question, and almost entirely the locus of the economic worth of a song. Accordingly, the more melodically similar two works are, the more likely a court will determine that the later created work infringes upon the earlier.

So, for evaluating the question of musical infringement, the drums and backup instrumentals all take a way-in-the-back backseat to the melody. (We’ll come back to whether this should be the case in a bit.) With all this in mind, go back and re-listen to each song. A brief bit of each will do.

I’m not a trained musician, but I mixed house and drum & bass records for years (at the tail end of when it meant mixing actual vinyl records), so I notice rhythmic similarities much more readily than melodic similarities. In terms of rhythmic elements, the speed and the drum patterns are so similar as to be “I could mix these two songs together in my sleep” close, which most non-DJs would describe as the two songs “feeling” very similar.

The rhythmic similarities are the bedrock of the two songs’ similar feel. They’re well within the same genre, and it’s not at all shocking to hear Thicke say that he was deliberately trying to recreate the groove of Gaye’s song. Yet even in terms of drum patterns — where the similarities are the strongest, even if the impact in a potential infringement suit is smallest — there are real differences.

I can hear (and can even visualize, as would be represented in a step sequencer) a host of differences. Most folks could probably hear the differences, though it may take some patience to listen to each song enough times; it took me a few listens each.

Melodically, the two songs are substantially more different. They are still well within the same genre here as well, but the melody should be transparently different even to the untrained ear. I should know, because I have just such an untrained ear (ask my karaoke victims, er, audiences) and I can hear the differences pretty easily.

In the case law, the closest analog I know of is Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177 (S.D.N.Y. 1976). The plaintiff, Bright Tunes, held the copyright in the composition of the doo-wop hit “He’s So Fine” — written by Ronnie Mack, who died of cancer as the Chiffons recording of his song was rocketing up the charts in 1963.

When George Harrison wrote and recorded “My Sweet Lord” in 1970, “He’s So Fine” was not at all on his mind, but he wound up creating a melody very similar to the older tune.

The similarities are striking, and importantly for the copyright question, it is the melodies of the two songs that are so similar. Here, somebody has helpfully created a mashup of “He’s So Fine” and “My Sweet Lord”, so you can listen to them simultaneously. They don’t line up perfectly, but it’s pretty clear that the melodies are pretty similar.

Harrison didn’t realize the similarities, but once they were pointed out to him, he says, “I thought, ‘Why didn’t I realize?’ It would have been very easy to change a note here or there and not affect the feeling of the record.” (Again, this isn’t part of the legal analysis, but I actually give Harrison much more credit here than I do Thicke on the “How badly is this white musician exploiting black musical culture” question. Intent matters for ethical and cultural criticism, but how much we like people and think they’re doing the “right” thing is not the same question as whether or not the law is on their side.)

Anyway, Harrison was essentially found to have subconsciously infringed on Mack’s song — to have infringed without having done so deliberately. This even though the two melodies are not identical — just very similar.

In light of all of this case law, for songwriters to have a deliberate intent to borrow is, if anything, helpful for them. Thicke and Pharrell surely know that it’s the melody that gets you in trouble — and they definitely acted accordingly. It doesn’t take much imagination to listen to the Gaye and Thicke songs and hear the latter’s notes as deliberately dissimilar to the former — thus, creating far more daylight between the two melodies than in the Bright Tunes case.

There’s actually an art to this that can pay handsomely if one composes music for TV commercials. If a songwriter wants too much to license a hit song that an advertiser covets, the advertisers can just hire a composer to bang out a not-quite-copy for a fraction of the price. This happens all the time; here are just a few examples.

I’ll end with a few words about whether the similarity standard we have now really should be the case. (Can you smell the journal article burning? What follows is the “This is a blog post and I need to go to bed” version.)

I don’t want a copyright system where I can’t create a song (or book or movie) that has a similar overall feel to anything that’s been done in the last hundred years. Because, guess what: If that’s the rule and it’s enforced at even a moderate rate (say, 10% or more), then creativity either comes to a screeching halt or goes largely underground. Building on previous cultural milestones is how culture works.

I’m even disturbed by the Bright Tunes standard: If we put two otherwise dissimilar songs next to each other, at just the right points, are most of the notes of some parts of the melody the same? Consider how scary this standard is in light of the musical simplicity of pop melodies. If this is the standard, are there any songs that aren’t infringing left to be written? I’m scared there may not be.

If Bright Tunes-style plaintiffs get just a bit more of a toehold in the case law, what’s to stop copyright trolls from buying up old songs that are just-similar-enough to big hits and demanding exorbitant payments? The ownership of the copyrights in studio recordings is more consolidated (mostly, these copyrights are owned by labels), but the rights to compositions are everywhere and can often be bought for relatively low prices.

If a hobbyist composer hopes to make it big but looks at this landscape in my not-unlikely-enough dystopian near-future, shouldn’t s/he be scared and consider maybe not even to bother? After all, even the mighty George Harrison claims never to have made a single dollar on one of his most beloved songs — all because he accidentally made the melody too similar to a very different song. What hope is there for somebody just starting out, who’s not also an expert musicologist walking around with a century of musical knowledge?

The Bright Songs standard is already too easy for plaintiffs. If Gaye’s heirs were to win a decision that “Blurred Lines” is infringing, it would send a pretty discouraging message to today’s would-be musical composers.

I say all of this as somebody who has a bone to pick with the “melody is everything” theory of musical composition that guides our law today. Distinctive rhythms can make or break a song, and the drums can themselves be the most memorable, marketable part of a song. (See: Stubblefield, Clyde.)

There are also unfortunate racial connotations to this paradigm. It’s not too far down the chain in the Apollonian/Dionysian dichotomy, where Apollo represents mind/discourse/melody/whiteness and Dionysus represents body/movement/rhythm/blackness.

Don’t think this still carries water today? Then why does popular discourse still treat blacks so prominently as athletes and dancers, generally discarding what they have to say? And why is it really important to hear what white people have to say, even when the very basis for their fame is a physical gift? (See: Tebow, Tim) Why is music from non-white parts of the world called World Beat and African music generally sold as AfroBeat?

The racial critique of this emphasis on melody is valid and important, but I still don’t want a copyright system where “Blurred Lines” is infringing, even though I just spent a whole paragraph arguing that the part where it’s most like “Got to Give It Up” shouldn’t be treated as so relatively unimportant by the law. While some have tried to reconcile this melody/rhythm inequity by pushing copyright in the direction of broader protection for rhythmic elements, I think the better solution is to put less emphasis on melody as separated from the whole composition and instead to put the whole composition in context.

Looked at as an entire composition, “My Sweet Lord” is pretty different from “He’s So Fine”. The lyrics are 100% different. The instrumentation is pretty different. The sound and feel are remarkably different. It’s only the focus on melody that led the court into what I think was a mistake.

On the other side, “Blurred Lines” and “Got to Give It Up” are more similar on most counts except lyrics and melody. They sound and feel very similar, though even the drum pattern is clearly not identical. Looked at holistically they’re still pretty different songs, built in large part on the very different lyrics and melody.

I don’t think we should set up a copyright system where “very rhythmically similar” is, by itself, grounds for a finding of infringement. The change I’m advocating is that we should also apply that standard to melodic similarity.

Just as inventors really want to keep the lawyers out of the lab, I really want to keep them out of the music studio. If the price of being able to compose without an attorney on retainer is that, sometimes, crass capitalists push the line of exploiting the feel of successful works, it’s a price I think we as a society should pay.

If we swing the other way, to the point that something like “Blurred Lines” equals legal hot water, that means pretty much all popular music puts you in legal hot water. Which would mean that only those who can afford attorneys — in advance — will have any business making music. And that’s a far higher price for we as a society to pay.

P.S. Speaking of prices paid, I hope we forward-thinking folks can all agree not to pay for “Blurred Lines.” If you like that song’s groove, allow me to suggest a Marvin Gaye tune I know. It’s not exactly the same; it’s better.

If there’s anything that pretty much everyone should agree on in light of the George Zimmerman/Trayvon Martin story, it’s that the story shows how deeply divided we remain as a country.

At least as reflected by posts on Facebook, 100% of my liberal intelligentsia friends are outraged that Martin is dead and Zimmerman is free, and the debates between us (to the extent that there have been any) have been about which people in the criminal justice system get which share of the blame.

Along with outrage, ethnic minorities and African Americans in particular also express a collective hurt and fear that I will never truly understand.

Yet others (here is where I’m grateful that not all of my friends and family are in the liberal intelligentsia) are miffed at the race-focused attention by the media and the political push to make the case into a symbol of broader issues. While I needn’t say it, let’s be explicit about the fact that nearly 100% of these folks are white. (I’m not Facebook friends with Clarence Thomas, and even if I were, I wonder if he posts more than once every seven years.)

While not all of these white, “Why the fuss?” crowd would admit it if probed, I think a good bit of this discomfort with the attention paid to the Zimmerman/Martin case comes from the implicit finger being pointed at them. If blacks are held down in schools, the job market, and the criminal justice system, surely somebody’s doing the holding. If minorities have unfair disadvantages, then the surplus unfair advantage is going to white people. If the system is racist, and you believe in the system, doesn’t that make you racist?

The good news is that the failure to be outraged over Trayvon’s death doesn’t make one a bigot, but the bad news is that this is because the answer is way more complicated than that. I hope to reassure my white, politically centrist or right-of-center friends that I’m not calling them racist or bigoted. Yet there are little things that we all do — you and me, blacks and whites, powerful and disempowered — that play into an incredibly intricate system of racial inequality.

This happens at every step of the criminal justice system, from police investigation through trial. As the Times notes:

A 2005 study by the Justice Department found that while Hispanic, black and white drivers were stopped by the police about as often, Hispanic drivers or their vehicles were searched 11.4 percent of the time and blacks 10.2 percent of the time, compared with 3.5 percent for white drivers. Data collected from state courts by the Justice Department also shows that a higher percentage of black felons than white felons receive prison sentences for nearly all offenses, and also that blacks receive longer maximum sentences for most offenses.

Even in murder trials where defendants claim self defense, race is a major factor. See this graphic.

Versus the baseline of white-on-white violence, black defendants are far less likely to be found to have acted in self-defense, and it’s many times again less likely when the victim is white. In contrast, white defendants are many times more likely to be found to have acted in self-defense when the victim is black.

That’s institutional racism.

Yet it goes farther. Many of the white “Why the fuss?” crowd might even acknowledge the racial bias in the courts (though too few are familiar with the staggering specifics), but they object to all the political outrage over Trayvon and wonder where the sympathy and coverage are for white crime victims, especially when the accused perpetrators are black.

It turns out, though, that the news media are also afflicted with institutional racism. This goes well beyond the genuine hacks like Bill O’Reilly. Rather, it’s the whole system — the one largely staffed by left-of-center reporters and editors.

In the aftermath of a major story about a black victim, killed by a white shooter, we’re hearing a good bit of “Why the fuss?” and “Where’s the attention to white victims and/or black perpetrators?” With no disrespect to any victim, whites have nothing to worry about when it comes to folks who look like them being shown on the news as victims of serious crimes. No news outlet can cover every story, but over time, white victims and black perpetrators have been and certainly will continue to be overrepresented.

On this count, Martin and Zimmerman are symbols for the broader problem of institutional racism in this country. Nobody needs to be energetically or even consciously racist for the major racial disparities we see to continue. Continuing racial inequity doesn’t need the next George Wallace; Michael Bloomberg will do just fine.

If you’re on the happy side of these inequalities, I think you should at least be honest with yourself and the world about the thousands of little ways in which your life is that much easier because of it. This isn’t to diminish the countless things you’ve undoubtedly done right, the hard work you’ve done, the substantial degree to which you’ve earned your place.

As white Americans, though, let’s at least all agree to be honest with ourselves and each other that we get at least a small leg up in pretty much every institution in society with which we deal.

That every right decision is likely to get us just a bit farther along than it would for an African American.

That we have at least a bit more room to make mistakes before being fired, evicted, jailed — or killed.

That the few places where we don’t have every advantage clearly pointed in our direction (college admissions and scholarships come to mind) are the exception and, regardless of what one thinks of them as policies, will never outweigh the much larger forces that cut the other direction.

That, yes, there are a few rich blacks and many poor whites, and class inequality is also a major issue that needs to be addressed — but that this doesn’t disprove any of the above.

Then, please join me in a quest to fight those disparities, one institution at a time. Not by making life harder for whites, of course, but by extending the same understanding, opportunities, and benefit of the doubt to all.

[The real point of this blog post is just to encourage you to read George Packer’s article (ungated version here. But c’mon, subscribe to the New Yorker already). It’s the best thing you’ll read this month.]

What’s interesting about Packer’s article is just how much ground he covers in such a relatively small space. Consider the following three passages from Packer’s article, compared to three of the most recent books in the tech-criticism genre:

(1)

“When financiers say that they’re doing God’s work by providing cheap credit, and oilmen claim to be patriots who are making the country energy-independent, no one takes them too seriously – it’s a given that their motivation is profit. But when technology entrepreneurs describe their lofty goals there’s no smirk or wink. “Many see their social responsibility fulfilled by their businesses, not by social or political action,” one young entrepreneur said of his colleagues. “It’s remarkably convenient that they can achieve their goals just by doing their start-up.” He added, “They actually think that Facebook is going to be the panacea for many of the world’s problems. It isn’t cynicism – it’s arrogance and ignorance.”

This passage is an elegant version of the “solutionism” critique in Evgeny Morozov’s new book, To Save Everything, Click Here. Silicon Valley entrepreneurs can have a habit of seeing technology as the solution to all the world’s problems. Everywhere some look, they see disruption. Evgeny makes a few very smart points, but his book is a little uneven. At times while reading it, I wondered whether he was making too much of the lofty language that appears in investment pitches, pursuing his targets with a bit too much zeal. If you wanted to boil the strongest parts of Morozov’s book down to their essence, you’d be left with passages like this one from Packer.

(2)

“In the past few years, San Francisco’s political leaders have grown close to the technology companies. Corey Cook, a political scientist at the University of San Francisco, who focuses on local politics, said, “The dominant narrative of the city is ‘What’s good for the tech industry is good for San Francisco.’” Historically, he said, what was good for General Motors wasn’t always good for the country: there was conflict between business and labor, which was resolved by insuring that factories offered middle-class jobs. He added, “Now there’s no conflict, but there are no middle-class jobs.”

It isn’t that Lanier doesn’t have a point to make, it’s that he lacks the drive, prose, and determination to make it artfully. His new book is focused on the relationship between social inequality and digital technologies. That’s an important topic, but it’s hard to pluck through the odd tangents to reach the serious ideas. Packer offers the same insight, but without the sloppy limitations.

(3)

A favorite word in tech circles is “frictionless.” It captures the pleasures of an app so beautifully designed that using it is intuitive, and it evokes a fantasy in which all inefficiencies, annoyances, and grievances have been smoothed out of existence—that is, an apolitical world. Dave Morin, who worked at Apple and Facebook, is the founder of a company called Path—a social network limited to one’s fifty closest friends. In his office, which has a panoramic view of south San Francisco, he said that one of his company’s goals is to make technology increasingly seamless with real life. He described San Francisco as a place where people already live in the future. They can hang out with their friends even when they’re alone. They inhabit a “sharing economy”: they can book a weeklong stay in a cool apartment through Airbnb, which has disrupted the hotel industry, or hire a luxury car anywhere in the city through the mobile app Uber, which has disrupted the taxi industry. “San Francisco is a place where we can go downstairs and get in an Uber and go to dinner at a place that I got a restaurant reservation for halfway there,” Morin said. “And, if not, we could go to my place, and on the way there I could order takeout food from my favorite restaurant on Postmates, and a bike messenger will go and pick it up for me. We’ll watch it happen on the phone. These things are crazy ideas.”

It suddenly occurred to me that the hottest tech start-ups are solving all the problems of being twenty years old, with cash on hand, because that’s who thinks them up.

My favorite part of Nicco Mele’s new book, The End of Big, is the attention he pays to the biases of the geek-class. Disruption is happening in a lot of industries. It is not always a good thing (and it is not happening everywhere all at once). This isn’t leveling the social playing field, though. It’s empowering a new elite — software engineers.

Now, if we’re going to empower some group of people as a privileged elite, I prefer technologists over many of the other alternatives. There’s more of a rough meritocracy in code-writing than there is in the old power elite. But we at least ought to examine what biases the new technologist class will bring to bear. Mele, at his best, offers a provocative argument for thinking long and hard about our newly crowned technology leaders.

Packer reaches the same end, but he does so in paragraphs rather than pages.

—

That’s three books of technology criticism, all published in the last three months — over 1,050 pages in all. George Packer in 10,000 vivid words accomplishes more than all three. Bravo. That’s one hell of an article.

I’m not a frequent Mad Men watcher, but I’m really into Game of Thrones. I’ve been thinking about the gender relations throughout — where Martin and the TV show make commendable moves, and where they fail — and I think this article gives the series too little credit. Ironically, Rhodes paints the series with too broad a brush.

It’s hardly a feminist watershed, of course, but both the novels and the TV series contain a range of reasonably thoughtful — if not particularly insightful — takes on gender. In addition to Arya and Brianna (masculinized), characters Rhodes critiques as obviously masculinized, consider some of the characters she fails to identify — like Daenerys Targaryan, Asha/Yara Greyjoy, and Ygritte the Wildling. Each is both feminine and a powerful warrior; none of them “must either de-feminize or prostitute themselves in order to gain power,” as Rhodes contends. Ygritte and Asha are both trusted warriors, neither without giving up her womanhood. Once Dany’s husband dies, she keeps a small clan together with sheer charisma and force of will. Yes, their lust-worthiness is also an important part of each character (esp. as shot for TV, in Daenerys’ case), but not one of these characters serves primarily as a mother or a whore. They’re warriors — and, in Dany’s case, a contender for the throne.

Yes, the books and show are primarily led by men, told from a male perspective, and well short of a natural 51/49 gender ratio, even in non-speaking roles. (If anything, that ratio should be more female-heavy in a world where so many men are dying in battle…) Still, this is decidedly less so than much of the other literature in the genre (paging Mr. Tolkien…), and women serve many roles other than mothering and whoring.

Yes, it’s filled with tired stereotypes (Cersei, Sansa, and Julia Roberts — er, I mean Shae — come to mind). Yes, the attempts at female perspective and dialog are, um, not strong suits. And yes, more than a token conversation here and there between women (let alone one that is not about men, children, and/or menstruation) would be nice.

Still, this is an over-wrought criticism that doesn’t show a real understanding of the series. In addition to the characters named above, consider Brianna, whom Rhodes does mention. She loves Renly more than life itself — literally — and falls apart as her Romeo dies in her arms. Granted, cutting-edge feminism it’s not (not-particularly-attractive woman hopelessly follows gay man on his adventures; yawn), but it’s another example of where this article leaves me wondering, “Did you pay much attention?” With such a thin understanding of the series, the author can’t get into the somewhat more subtle ways in which Game of Thrones still doesn’t fulfill the wishes a feminist (e.g., me) might have for more accurate and nuanced gender portrayals.

Just as damnably, the article also doesn’t give credit where due. This series is primarily targeted at men, and if there’s one dominant theme about gender relations (at least, to anyone who’s looking at anything beyond all the eye candy), it’s how rough it is to be a woman in a patriarchal society. To me, at least, that message comes through loud and clear. A key theme within that broader message is that rape is bad, rapists are bad, and rape often has and should always have dire consequences for the perpetrator.

Which brings us back to Arya. She did not proactively seek to pretend to be a boy; she did so (at the very strong urging of, yes, a grizzled-but-caring adult man) in order not to be identified and/or raped during her clandestine journey. That’s kind of an important detail that complicates the analysis.

It’s a series whose characters are painted with very broad brushstrokes. (See: Baratheon, Joffrey.) The books, written for men, are by a nerdy manchild who doesn’t have a particularly rich understanding of how women think, speak, and behave. The TV show is on a channel known for catering to the male gaze.

Those don’t add up to Toni Morrison. Duh.

Still, Rhodes goes overboard here. The series makes an obvious, honest effort to identify the constructedness of gender roles and the unique struggles of women in a patriarchal society. It also screams to its male audience, “RAPE IS BAD!”, a lesson that (quite sadly) still needs to be taught.

TV and broader society are still places where victim-blaming, slut-shaming, and “Back in the kitchen with you!” are not only common, but even proffered as insightful commentary on the day’s affairs. Especially against that (oh-me-how-far-we-have-to-go) backdrop, Game of Thrones is okay by me. And that’s not just my inner 13-year-old talking.